Here’s how undertrial prisoners in India are denied the right to fair trial

On Wednesday, Amnesty International India published a damning report on the state of undertrials in the country. The report, Justice Under Trial: A Study of Pre-trial Detention in India, analysed data available with the National Crime Records Bureau and records collected by the human rights organisation from the country’s 500-odd district and central jails through nearly 3,000 Right To Information petitions.

Undertrials are people who have been detained for alleged crimes but remain in custody as they await trial – a process that can sometimes takes years.

Here are the report’s main findings:

Mostly Muslims, Dalits, Adivasis

The National Crime Records Bureau data cited by the report shows that the share of undertrials in India’s prison population has been consistently high.

Marginalised communities form the bulk of the undertrial population – 53% are Muslim, Dalit and Adivasi. This is a disproportionately high number given these communities together make up only 39% of India’s population.

Most undertrials are poorly educated. Around 29% are illiterate and 42% have not completed secondary education.

Rarely produced in court

Undertrials need to be frequently produced in court in order for their cases to progress. They are either escorted to court by the police or video-conferences with the judge are set up.

Records, however, show that in states such as Rajasthan, Uttar Pradesh and Karnataka, undertrials are routinely not produced in court. In the 154 prisons that responded to Amnesty India’s RTI applications, there have been 82,334 instances between September 2014 and February 2015 when undertrials were not produced in court for want of police escort.

The facility of video-conferencing is not being utilised sufficiently either. In 28 of the 154 prisons, there were 27,691 instances from September 2014 to February 2015 when undertrials who were scheduled to be produced before magistrates through video-conferencing were not produced.

Inadequate legal aid

This chart shows the number of legal aid lawyers per prison and the frequency of their prison visits per month.

According to the report, at least 23 prisons reported having no legal aid lawyers. Haryana has the highest number of legal aid lawyers in the country but the number of prison visits by each lawyer per month is strikingly low – an average of 0.22 times. This shows that legal aid is not efficiently provided in most of the country’s prisons.

Poorly paid

The paucity of legal aid lawyers is hardly surprising given the poor remuneration they receive for filing bail applications.

This chart shows the difference in remuneration for legal aid lawyers across states. The amount is low in all states. The Amnesty India report quotes a legal aid lawyer in Bangalore as saying, “I have been doing legal aid for 13 years but have never gone to collect the case amount.”

Wrongly released

If undertrials are held for a period equal to half their potential sentence, then under Section 436A of the Code of Criminal Procedure, they are eligible for release on a personal bond. After release, they are required to appear at all future court dates. However, the report states that a large number of undertrials have been incorrectly released under the law.

According to records furnished in response to the RTI requests, 1,544 undertrials in 254 prisons were shown as being eligible for release under the law. But Amnesty India found that of these, 1,286 cases of release were incorrectly determined. By including in their lists prisoners who face cases where the maximum penalty is death – they are not eligible for release under Section 436A – prison authorities have demonstrated poor understanding of the law.

In light of these findings, Amnesty India has recommended, among other measures, that remuneration for legal aid lawyers be standardised across the country, more legal aid lawyers be employed and a separate reserve of police personnel be employed as escorts for undertrials.